DEBRAH AND OTHERS VRS. REPUBLIC (CR/0272/2023) [2024] GHAHC 263 (8 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON FRIDAY, 8TH DAY OF MARCH, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT SUIT NO.: CR/0272/2023 1. STEPHEN YAW ASIEDU DEBRAH 2. CEPHAS OFOE SECHIE - APPELLANT 3. WALKER OSMAN @ ALHAJI 4. OSEI BEDIAKO VRS. THE REPUBLIC ========================================================================== JUDGMENT ========================================================================== This judgment is delivered based on a Petition of Appeal filed on 8th November, 2023 on behalf of the Appellant, Cephas Ofoe Sechie who was the 2nd Accused person at the trial Court. The petition was filed pursuant to leave granted on the 5th May 2023 to file appeal out of time. THE OFFENCES CHARGED AND SENTENCES The Appellant and three (3) others were charged with the following offences: Page 1 of 15 1. Two (2) counts of conspiracy to commit crime, namely Stealing contrary to Sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) 2. Two (2) counts of stealing contrary to Section 124 (1) of the Criminal Offences Act, 1960 (Act 29) 3. Two (2) counts of Conspiracy to commit crime, namely Forgery of Official documents contrary to Section 23 (1) and 158 of Act 29 and 4. Two (2) counts of Forgery of Official documents contrary to Section 158 of Act 29 Attached to the Petition of Appeal is the judgment of the trial Circuit Court as required under Section 326 of the Criminal and Other Offences Act, 1960 (Act 30). The judgment indicates that the Appellant and his co-accused all pleaded not guilty to all the charges and went through a full trial. The Appellant, then 2nd Accused person was convicted on four (4) counts whilst the 1st Accused person, an Ex-Policeman was convicted on six (6) counts. The 3rd Accused person was acquitted and discharged. It is however not clear from the judgment what happened to the 4th Accused person. The Appellant received a six (6) year concurrent term of imprisonment. The trial Court was presided over by Her Honour Priscilla Dapaah Mireku (as she then was). THE PETITION OF APPEAL One (1) ground of Appeal stated was that: The sentence was harsh The Appellant therefore sought for the following relief: A reduction in sentence THE FACTS OF THE CASE The facts as gleaned from the judgment of the trial Court as attached to the petition are that: Page 2 of 15 The Appellant, then the 2nd Accused person met with three (3) other co-accused at Alajo in Accra and planned to steal vehicles and sell them. According to the said plan, the 1st Accused person was to rent the vehicles whilst the Appellant find unsuspecting buyers to buy the said vehicles. From the testimony of PW3 as in the judgment of the Court, he was called on phone by the 3rd Accused person who he knew, that he and his friends needed a loan to clear their goods from the port and that they have a vehicle to be used as collateral security for the purpose. He told the Court that the Accused persons including the Appellant came to him the same day with documents of the vehicle which he was told belonged to the Appellant. He said after seeing the documents of the car, he gave them the loan of twenty thousand Ghana cedis (GHC20, 000.00) in the name of the Appellant with a promise to repay in a week. According to the evidence of PW3 as in the judgment, a day after he provided them with the money, the 3rd Accused person came back that they needed additional loan for 4th Accused person which he gave. Then yet the day, after the Appellant also came back for more loan which he refused him after getting suspicious of them. The facts further indicates that the Appellant and his colleagues indeed failed to repay the said loans. His (PW3) search with the DVLA revealed that the vehicle’s documents presented to him in the name of the Appellant turned out to be a forged one. He later got to know the real owners of the vehicle in the course of police investigations. The judgment indicates at page 5 (2nd line) that PW3 in his testimony said it was the Appellant who confirmed to him that he was the owner of the vehicle used as collateral. The role therefore of the Appellant in the conspiracy to defraud was to falsely present himself as the owner of the vehicle to be used as collateral for the loan with documents which turned out to be forged. Page 3 of 15 THE WRITTEN SUBMISSIONS AND ARGUMENTS IN SUPPPORT The submissions on behalf of the Appellant was filed on 13th December 2023. By way of mitigation, it has been argued on behalf of the Appellant that he is 38 years, married and has a child, a woman who is now carrying his child and an elderly mother dependent on him It is further submitted that the Appellant and his co-accused have after their conviction and sentence on their own, paid three thousand Ghana cedis (GHC3, 000.00) out of the twenty thousand Ghana cedis (20,000.00) they have been convicted for conspiring to steal. The submissions further states by way of mitigation that the Appellant has not had any previous brush with the law. Again he says that, the Appellant is a young person and his youthfulness and the fact of being a first time offender must equally be considered by this Court. Counsel calls on the Court to have the six (6) years sentence of the Appellant reduced as custodial sentences serve no useful purpose as the conditions in the prisons are dire. This Court has also been called upon to consider the remorse shown by the Appellant even before his sentence and afterwards. The submission further invites the Court to consider the effects of long incarceration especially on young persons and refers to the case of TORTO VS. THE REPUBLIC (1971) 342 CA. The counsel for the Republic/Respondent also filed her submission on the 14th February 2024. She makes reference to the relevant laws on the charges the Appellant faced as well Section 296 (5) of Act 30 on the relevant punishment for offences involving dishonesty such as stealing. The Attorney also made reference to case such as KWASHIE VS. THE REPUBLIC (1971) 1 GLR 488, CA and ABU VS. THE REPUBLIC (1980) GLR 294 on the principles Page 4 of 15 of sentencing and factors to be considered by an Appellate Court in a criminal appeal. It is submitted on behalf of the Republic that the sentence meted out to the Appellant was within the law and was not excessive. The learned Attorney has further stated that the trial Court did consider all the mitigating factors as well as the aggravating factors before sentencing him. The argument of the counsel for the Appellant that the Appellant has a child and a woman with child has been dismissed as not relevant grounds for mitigation. Finally it was submitted that, the Appellant was involved in a criminal enterprise which led to the loss of about GHC24,000.00 and the fact that some minimal part of the monies have been paid is not enough grounds for the sentence to be reduced but rather confirmation that the Appellant admits the offences levelled against him. APPEAL BY WAY OF REHEARING It is a settled principle of law, that an Appeal is a creature of statute and as such the right to appeal at any stage of a trial, whether criminal or civil, and to which Court and through what means or procedure is all governed by law. Under the Criminal Procedure Act, 1960 (Act 30), the right to appeal to the High Court in a criminal case from a lower Court is provided for by Section 324 of the Criminal Offences and Other Procedure Act, 1960 (Act 30) as well as under Section 44 (2) of the Courts (Amendment) Act 2002 (Act 620). An appeal is also said to be by way of rehearing. This means that the Appellate Court or body is to examine the entire proceedings or judgement that is the subject of the appeal to determine whether the decision can be supported in law or in fact or both. Numerous case law support this principle that is relevant to both civil and criminal appeals. See cases such as DEXTER JOHNSON VS. THE REPUBLIC (2011) SCGLR Page 5 of 15 601, NAGODE VS. THE REPUBLIC (2011) SCGLR 975, AMANKWAH VS. THE REPUBLIC (J3/04/2019) (2021) GHASC 27 DATED 21ST JULY 2021. APPEAL ALLOWED ONLY ON SUBSTANTIAL MISCARRIAGE OF JUSTICE By way of statutes, the Courts Act (NRCD 323) regulates the conduct of criminal appeals by its Section 31 when it states: “(1) subject to subsection (2) of this section, an Appellate Court in hearing any appeal before it in a criminal case, shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case, shall dismiss the appeal. (2) The Court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or the point raised in the appeal consists of a technicality or procedural error or a defect in the charge sheet or indictment but there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the caused could have been convicted upon that charge or indictment” THE APPEAL AGAINST SENTENCE It has been decided severally that an appeal against sentence only means that the Appellant does accept, that he was rightly convicted, which means that when an Accused person pleads guilty no further proof of the case is necessary. This principle is enunciated in cases including the ones below: Page 6 of 15 (1) FIIFI KOFI ADU VS. THE REPUBLIC (2015) JELR 63662 C.A (2) FORSON VS. THE REPUBLIC (1975) JELR 66385 HC, TAYLOR J. (3) DARKRUGU VS. THE REPUBLIC (1989-99) 1 GLR 308 (4) ATTA BONSU AND ANOTHER VS. THE REPUBLIC (2018) JELR 66461C.A However, it is also the principle that an Appellate Court can interfere with a conviction which it deems wrong in law or not borne out of the facts and set it aside notwithstanding the fact that the appeal was not against conviction. It was stated in FORSON VS. THE REPUBLIC (SUPRA), Taylor J (as he then was) thus: “It is my opinion that an appeal against sentence where the conviction is not being challenged as in this case necessarily implies that the conviction is prima facie in order. However, if the conviction is not in fact in order it cannot support a sentence, and in such a case the sentence is set aside as it ought to be, then, with it goes the conviction.” It is important to specify that the Record of Appeal does not include the entire proceedings of the trial, but only the judgment of the Court. I believe it is because the Appellant’s counsel considered that the appeal is only against sentence and therefore the judgment alone could serve that purpose. On that basis, it is to be considered that under Section 326 (2) of the Criminal and Other Offences Procedure Act, 1960 (Act 30), it is the order or judgment appealed against which the law requires to accompany a Petition of Appeal in a criminal appeal to the High Court. The Section states: “Unless otherwise directed by the High court, the petition must be accompanied by a copy of the Order or Judgment appealed against” Page 7 of 15 However, experience has shown that it serves a most useful purpose if the entire proceedings is obtained for the Appellate Court to have a holistic overview of the entire case to enable the “rehearing” role of the Appellate Court to be most effective. In this particular appeal, I make reference to page 9 of the judgment where the trial judge pronounced the guilt of the Appellant and his co-accused. She found the Appellant guilty on four (4) counts, which she stated as “counts 1, 3, 5 and 7”. Meanwhile at page 1 of the judgement, she made out the charges against the Appellant and his co-accused and stated: “the Accused persons were arraigned before this Court and charged with two counts of conspiracy to commit crime to wit stealing contrary to Section 23 (1) and 124 (1) of Act 29, two counts of stealing to Section 124 of Act 29, contrary to two counts of conspiracy to commit crime to wit forgery of official documents contrary to Sections 23 (1) and 158 of Act 29 and two counts of forgery of official documents contrary to Section 158 of Act 29. All Accused persons pleaded not guilty to all the said eight counts” What is difficult for this Court to analyze for the purpose of this appeal is which particular counts constituted which charges. I cannot tell what charges were contained in the particular counts that the Appellant was convicted of. The presence of the charges sheet would have been most crucial. I would therefore assume that the charges came in the order in which the trial judge listed the counts in her judgement as is usually the case, where the conspiracy charges precede the substantive. I will therefore proceed with this appeal on that basis. THE ANALYSIS OF THE SENTENCE The Appellant from the judgment was convicted for the offences of Conspiracy to steal, Stealing, Conspiracy to commit forgery of official documents and Forgery of official documents. Page 8 of 15 Under Section 24 of the Criminal Offences Act, 1960 (Act 29) as aptly state by the learned State Attorney, the offence of conspiracy is punished with the same punishment of the substantive offence for which the conspiracy was committed whether the offence was actually committed or not. Section 24 (1) states as follows: “Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offer is committed, be punished for that criminal offence or shall where the criminal offence is not committed be punished as if each had abetted that criminal offence.” In addition, the offences of stealing under Section 124 of Act 29 and 158 on Forgery of official documents are declared to be second degree felonies. The Appellant was in this circumstance charged and convicted for two (2) second degree felonious substantive offences whose punishment the conspiracy charges also take their color from. Under Section 296 (2) of the Criminal Offences and Other Procedure Act, 1960 (Act 30), a criminal offence declared by any enactment to be a second degree felony shall carry a term of imprisonment of not more than ten (10) years unless such an offence is listed under Section 296 (5) of Act 30. In reference, Section 296 (5) states: “a person convicted of a criminal Offence under any of the following sections of the Criminal Offences Act, 1960 (Act 29) that is to Sections 124,128, 131, 138,145, 151, 152, 154, 158 239, 253 and 260 is liable to a term of imprisonment not exceeding twenty five (25)” From the provision above, the punishment for offences such as stealing and forgery of official documents are clearly stated and fixed as a term of imprisonment and no other punishment can be imposed. Page 9 of 15 It is obvious under Section 297 (1) Of Act 30 relating to fines that where a person is convicted for either e felony or misdemeanor, the Court may in its discretion sentence that person to a fine in addition or in lieu of any other punishment except where the offence for which the person was convicted carries a sentence fixed by law. It is therefore my considered opinion that, with the offences of stealing and forgery of official documents clearly listed under Section 296 (5) carrying a term of imprisonment, a Court would act erroneously if it metes out a fine under such circumstances. In his written submission, the counsel for the Appellant has submitted at page 2, paragraph 4 that: “He has never had a brush with the law and should be spared a custodial sentence.” Again, at paragraph 5 he states: The Appellant was ready to refund the amount he was accused of having stolen and that would most probably have been better than his incarceration where he would be thought more criminal techniques and others.” From relevant provisions of Act 30 as quoted above, the prayer of the counsel of the Appellant for other forms of punishment cannot be fulfilled since the punishment per the law for the offences has to be a term of imprisonment. In considering of the number of years given to the Appellant, being six (6) years, in relation to Section 296 (5) aforementioned, the trial Court cannot be faulted. She acted within the law as the maximum sentence that can imposed is 25 years. As rightly pointed out and argued by the counsel for the Republic/Respondent, the judgment of the trial Court proves that the trial judge before sentencing the Appellant Page 10 of 15 considered some aggravating and mitigating factors available to her. It can be found at pages 9 and 10 where the learned trial judge considered the length of time the Accused had spent in custody which can be considered a mitigating factor. In addition, she considered and stated how by their absconding during the trial, the Accused had unnecessarily delayed the trial. She also commented on the lack of remorse shown by the Accused including the Appellant, which may also be considered aggravating factors against the Accused. Again the learned trial judge stated further that she had considered other vitiating and mitigating factors. At page 10, the Court stated: “Upon the consideration of the length of time the Accused persons have spent in custody and has through their absconding nature, during trial unnecessarily delayed this trial and lack of remorse and other activity and mitigating facts. 1st Accused person is sentenced to 8 years in prison in hard labour for each count and sentence to run concurrently, 2nd Accused person is sentenced to 6 years in prison in all the counts in hard labour.” In any case, it is a Constitutional requirement under Article 14 (6) that a trial Court shall consider any time spent by an Accused in lawful custody before sentence. This provision has been interpreted to be a mandatory one by the Apex Court in cases such as FRIMPONG BADU VS. THE REPUBLIC, CRIM APP, NO J3/11/ 2015, Supreme Court per ADINYIRA JSC and BOSSO VS. THE REPUBLIC (2009) SCGLR 420, KWAKU FRIMPONG aka IBOMAN VS. THE REPUBLIC, CRIM. APP. NO J3/5/ 2010, SC. In FRIMPONG BADU (supra), ADINYIRA JSC stated inter alia: “The principle of sentencing have changed, Article 14 (6) of the 1992 constitution requires that where a person is convicted and sentenced to a term of imprisonment from an offence, any period he has spent in lawful custody in respect of that offence Page 11 of 15 before the completion of his trial, shall be taken into consideration in imposing the term of imprisonment.” In addition, I make reference to, the Ghana Sentencing Guidelines for judges in criminal trials, that articulates that any aggravating and mitigating factors available to an Accused are considered before sentencing. The guidelines goes ahead to provide the needed guide for some specific offences with suggested sentences to consider. For this appeal, without the entire Records of Appeal, it is once again impossible for me to consider the number of years the Appellant may have spent before his conviction, but with the trial judge having stated in her judgment that she has considered same, I am bound by the record and will conclude that the trial judge did consider the constitutional requirement under Article 14 (6). On the grounds that the Appellant had had no brush with the law before his conviction, as stated by his counsel, I find it difficult to determine this fact from a reading of the judgment alone. There is nothing stated in the judgment to the effect that the trial judge was informed that the Appellant was a first time offender, neither is there any evidence also to the contrary that he was known to the law. Under these circumstances and being bound by the record, the benefit of the doubt will be given to the Appellant that he was not known to the law, hence I will treat him as a first time offender. Another mitigating factor to consider which is not captured in the judgment is the age or youthfulness of the Appellant as alleged by his counsel. From his submissions, at page 1, it is claimed that the Appellant is 38 years. It is not clear whether that age is that of the Appellant now or at the time of his conviction. Be that as it may, the age of 38 years will not serve as a mitigating factor for the Appellant either as juvenile or a young offender. This is because under the interpretation section of the Juvenile Justice Act, Section 414, a juvenile is a person under the age of 18 years, whilst a Page 12 of 15 young offender or person is defined as a person who is 17 year or more but under 20 years. Assuming that the Appellant was afforded some mitigation at all with age, the fact of the judgment not having stated the age will render that factor not to be determined by this Court as it is not borne out of the records, and as stated, 38 years cannot be considered as a mitigatory factor. It must be stated and emphasised that in an appeal, the parties are bound by the Record of Appeal and counsel for the Appellant cannot refer to any fact or make assertions (such as the age of the Appellant) that cannot be supported by reference to the record. See the case of ABDULAI IBRAHIM @ YARO VS. THE REPUBLIC (CA) CRIMINAL APPEAL H120/2019 DELIVERED ON THE 25TH JUNE 2020. A case which emphasises on the need for parties and an Appellate Court to rely on the Record of Appeal and nothing else. The Court of Appeal has again held in the case of ISMAILA NUNOO LARTEY VS. THE REPUBLIC (Unreported), CRIMINAL APPEAL NO. H2/26/2107 DATD 30TH JANAURY 2019 That an Appellate Court is also limited to the errors committed by the trial Court and not matters which allegedly happened after sentence and do not form part of the record of appeal. On this basis, I can only proceed with this appeal in consideration of the record before this Court, which is the judgment. I do agree with counsel for the Republic/Respondent that the allegation that the Appellant has a young child and woman with child as well as an elderly dependent mother are not considerations for an Appellate Court especially when such information was never made available to the trial Court and no further evidence has been led on appeal to support same. Page 13 of 15 In the case of the SAMUEL AGOE MILLS ROBERTSON VS. THE REPUBLIC, (UNREPORTED) DATED 28TH MAY 2014, SC, the Court failed to consider the personal circumstance alone of an Appellant as a mitigatory factor to reduce his sentence. The Court held that mere fact of the physical disability of the Appellant was not enough to interfere with the sentence meted out by the trial Court. The reduced sentence of 12 years from 15 years given by the Court of Appeal was overturned, and the 25 years given by the trial judge was restored. The Court relied on the age old principle on appeal that sentencing is a discretionary power given to trial Courts and when such power has been judiciously exercised, an Appellant Court has no discretion to interfere with the exercise of such power. The Court reiterated the principle as follows: “The principles upon which the Court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the Court had been trying the Appellant they might have passed a somewhat different sentence. The Court would only interfere when it is of the opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle.” I will, therefore not accord the Appellant any benefit by way of mitigation because of his personal family circumstance. On the aggravating circumstance, the trial Court per the judgment made it evident that the Appellant and his colleagues jumped bail and absconded for some long time, thereby delaying the trial. It is also stated that the Appellant and his group showed no sign of remorse. I do not believe that merely pleading for leniency after conviction when punishment is staring one in the face is enough grounds to constitute a mitigating factor when the trial Court has stated clearly the unrepentant attitude of the Appellant. Page 14 of 15 Finally, considering the claim by counsel for the Appellant that some GHC3, 000.00 has been paid by the Appellant and his co-accused in mitigating, it is my opinion that there has not been any evidence to that effect for this Court to consider. There are questions not answered in consideration of that allegation. Which of the convicts paid that money, who was the money paid to, how much has the Appellant himself paid? These are answers to be provided to prove any such payments made and which answers are not available to this Appellate Court. The facts of the case as found in the judgment spells out the role of the Appellant in deceiving the PW3 as the owner of the vehicle which documents were in his name and which documents turned out to be forged, these facts cannot be glossed over. From the analysis so far, after consideration of the submissions made by both counsel for and against the appeal and consideration of the mitigating and aggravating factors in favour of the Appellant, I will consider only the fact that the Appellant was a first time offender, which fact was not considered by the trial Court. I will accordingly reduce the sentence of the Appellant herein, Cephas Ofoe Sechie, by two (2) years, from six (6) years IHL to four (4) years IHL on counts 1, 3, 5, and 7. The sentences are to run concurrently. The appeal against sentence thereby succeeds. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: OSMAN MOHADEEN FOR THE APPELLANT JENNIFER AFRIYIE YENTUMI FOR THE REPUBLIC/RESPONDENT Page 15 of 15